Schoolcraft v. The City Of New York et al

Filing 545

REQUEST TO CHARGE. Document filed by Lillian Aldana-Bernier.(Brady, Bruce)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,
Docket No. 10-cv-6005 (RSW)
Plaintiff,
- against THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
MARINO, Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH
BROOKLYN NORTH GERALD NELSON, Tax Id. 912370,
Individually and in his Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO, Tax Id. 895117, Individually and in his
Official Capacity, CAPTAIN THEODORE LAUTERBORN,
Tax Id. 897840, Individually and in his Official Capacity,
LIEUTENANT JOSEPH GOFF, Tax Id. 894025, Individually and
in his Official Capacity, stg. Frederick sawyer, Shield No. 2576,
Individually and in his Official Capacity, SERGEANT KURT
DUNCAN, Shield No. 2483, Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax Id. 915354,
Individually and in his Official Capacity, LIEUTENANT TIMOTHY
CAUGHEY, Tax Id. 885374, Individually and in his Official Capacity,
SERGEANT SHANTEL JAMES, Shield No. 3004, JAMAICA
HOSPITAL MEDICAL CENTER, DR. ISAK ISAKOV, Individually
and in his Official Capacity, DR. LILIAN ALDANA-BERNIER,
Individually and in her Official Capacity,
Defendants.
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REQUESTS TO CHARGE
OF
DR. LILIAN ALDANA-BERNIER

Callan, Koster, Brady & Nagler, LLP
One Whitehall Street, 10th Fl.
New York, New York 10004
[phone]
Bruce M. Brady
Of Counsel

The defendant Dr. Aldana-Bernier requests that the following charges be submitted to the
jury
1. PJI 1:7 Consider Only Competent Evidence
As the sole judges of the facts, you must decide which of the witnesses you believe, what
portion of their testimony you accept and what weight you give to it. At times during the trial I
may sustain objections to questions and you may hear no answer, or, where an answer has been
made, I may instruct that it be stricken or removed from the record and that you disregard it and
dismiss it from your minds. You may not draw any inference or conclusion from an unanswered
question nor may you consider testimony which has been stricken or removed from the record in
reaching your decision. The law requires that your decision be made solely upon the evidence
before you. Such items as I exclude from your consideration will be excluded because they are
not legally admissible.
2. PJI 1:8 Weighing Testimony
The law does not, however, require you to accept all of the evidence I shall admit. In
deciding what evidence you will accept you must make your own evaluation of the testimony
given by each of the witnesses, and decide how much weight you choose to give to that
testimony. The testimony of a witness may not conform to the facts as they occurred because he
or she is intentionally lying, because the witness did not accurately see or hear what he or she is
testifying about, because the witness' recollection is faulty, or because the witness has not
expressed himself or herself clearly in testifying. There is no magical formula by which you
evaluate testimony. You bring with you to this courtroom all of the experience and background
of your lives. In your everyday affairs you decide for yourselves the reliability or unreliability of
things people tell you. The same tests that you use in your everyday dealings are the tests which

you apply in your deliberations. The interest or lack of interest of any witness in the outcome of
this case, the bias or prejudice of a witness, if there be any, the age, the appearance, the manner
in which the witness gives testimony on the stand, the opportunity that the witness had to
observe the facts about which he or she testifies, the probability or improbability of the witness'
testimony when considered in the light of all of the other evidence in the case, are all items to be
considered by you in deciding how much weight, if any, you will give to that witness' testimony.
If it appears that there is a conflict in the evidence, you will have to consider whether the
apparent conflict can be reconciled by fitting the different versions together. If, however, that is
not possible, you will have to decide which of the conflicting versions you will accept.
3. PJI 1:10

Do Not Visit Scene

Since this case involves something that happened at a particular location, you may be
tempted to visit the location yourself. Please do not do so. Even if you happen to live near the
location, please avoid going to it or past it until the case is over. In addition, please do not
attempt to view the scene by using computer programs such as Google Earth. Viewing the scene
either in person or through a computer program would be unfair to the parties, since the location
as it looked at the time of the accident and as it looks now may be very different. This case
involves a location as it existed at the time of the accident, not as it exists today. Thus, you
should rely on the evidence that is presented here in court to determine the circumstances and
conditions under which the accident occurred. Also, in making a visit without the benefit of
explanation, you might get a mistaken impression on matters not properly before you, leading to
unfairness to the parties who need you to decide this case based solely upon the evidence that is
relevant to this matter.

4. PJI 1:11

Discussions With Others – Independent Research

In fairness to the parties to this lawsuit, it is very important that you keep an open mind
throughout the trial. Then, after you have heard both sides fully, you will reach your verdict only
on the evidence as it is presented to you in this courtroom, and only in this courtroom, and then
only after you have heard the summations of each of the attorneys and my instructions to you on
the law. You will then have an opportunity to exchange views with each member of the jury
during your deliberations to reach your verdict.
Please do not discuss this case either among yourselves or with anyone else during the
course of the trial. Do not do any independent research on any topic you might hear about in the
testimony or see in the exhibits, whether by consulting others, reading books or magazines or
conducting an internet search of any kind. All electronic devices including any cell phones,
smartphones, laptops or any other personal electronic devices must be turned off while you are in
the courtroom and while you are deliberating after I have given you the law applicable to this
case. [In the event that the court requires the jurors to relinquish their devices, the charge should
be modified to reflect the court's practice.]
It is important to remember that you may not use any internet services or social media,
including Google, Facebook, Twitter, to individually or collectively give or get information
about the case or to research topics concerning the trial. Some of the topics you are not to
research or discuss through the use of your computers or personal electronic devices are the law,
information about any of the issues in the case, the parties, the lawyers or the court. After you
have rendered your verdict and have been discharged, you will be free to do any research you
choose, or to share your experiences, either directly, or through your favorite electronic means.

For now, be careful to remember these rules whenever you use a computer or other
personal electronic device during the time you are serving as a juror but you are not in the
courtroom.
Similarly, in the event that there is any media attention to this case, you are not to read
newspaper accounts, listen to radio broadcasts or watch television reports about the case.
While this instruction may seem unduly restrictive, it is vital that you carefully follow
these directions. The reason is simple. The law requires that you consider only the testimony and
evidence you hear and see in this courtroom. Not only does our law mandate it, but the parties
depend on you to fairly and impartially consider only the admitted evidence. To do otherwise, by
allowing outside information to affect your judgment, is unfair and prejudicial to the parties and
could lead to this case having to be retried.
Accordingly, I expect that you will seriously and faithfully abide by this instruction.
5. PJI 1:36

Impartiality

6. PJI 1:37

Jury Function

7. PJI 1:38

Court Function

8. PJI 1:39

No Interference from Rulings

9. PJI 1:40

Consider Only Competent Evidence

At times during the trial I have sustained objections to questions asked without allowing
the witness to answer or where an answer was made, instructed that it be stricken from the record
and that you disregard it and dismiss it from your minds. You may not draw any inference or
conclusions from an unanswered question nor may you consider testimony which has been
stricken from the record in reaching your decision. The law requires that your decision be made

solely upon the evidence before you. Such items as I have excluded from your consideration
were excluded because they were not legally admissible.
10. PJI 1:41

Weighing Testimony

The law does not, however, require you to accept all of the evidence I admit. In deciding
what evidence you will accept you must make your own evaluation of the testimony given by
each of the witnesses, and decide how much weight you choose to give to that testimony. The
testimony of a witness may not conform to the facts as they occurred because he or she is
intentionally lying, because the witness did not accurately see or hear what he or she is testifying
about, because the witness' recollection is faulty, or because the witness has not expressed
himself or herself clearly in testifying. There is no magical formula by which you evaluate
testimony. You bring with you to this courtroom all of the experience and background of your
lives. In your everyday affairs you decide for yourselves the reliability or unreliability of things
people tell you. The same tests that you use in your everyday dealings are the tests which you
apply in your deliberations. The interest or lack of interest of any witness in the outcome of this
case, the bias or prejudice of a witness, if there be any, the age, the appearance, the manner in
which the witness gives testimony on the stand, the opportunity that the witness had to observe
the facts about which he or she testifies, the probability or improbability of the witness'
testimony when considered in the light of all of the other evidence in the case, are all items to be
considered by you in deciding how much weight, if any, you will give to that witness' testimony.
If it appears that there is a conflict in the evidence, you will have to consider whether the
apparent conflict can be reconciled by fitting the different versions together. If, however, that is
not possible, you will have to decide which of the conflicting versions you will accept.

11. PJI 1:22

Falsus in Uno

If you find that any witness has wilfully testified falsely as to any material fact, that is as
to an important matter, the law permits you to disregard completely the entire testimony of that
witness upon the principle that one who testifies falsely about one material fact is likely to testify
falsely about everything. You are not required, however, to consider such a witness as totally
“unbelievable.” You may accept so much of his or her testimony as you deem true and disregard
what you feel is false. By the processes which I have just described to you, you, as the sole
judges of the facts, decide which of the witnesses you will believe, what portion of their
testimony you accept and what weight you will give to it.
12. PJI 1:60

Burden of Proof

To say that a party has the burden of proof on a particular issue means that, considering
all the evidence in the case, the party's claim on that issue must be established by a fair
preponderance of the credible evidence. The credible evidence means the testimony or exhibits
that you find worthy of belief. A preponderance means the greater part of the evidence. That
does not mean the greater number of witnesses or the greater length of time taken by either side.
The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and
the effect that it has on your minds. In order for a party to prevail on an issue on which he or she
has the burden of proof, the evidence that supports his or her claim on that issue must appeal to
you as more nearly representing what happened than the evidence opposed to it. If it does not or
if it weighs so evenly that you are unable to say that there is a preponderance on either side, you
must decide the question against the party who has the burden of proof and in favor of the
opposing party.

The plaintiff has the burden of proving that the defendants were negligent and that
defendant's negligence was a substantial factor in causing the plaintiff’s injuries. The defendant
has the burden of proving that the plaintiff was negligent and that the plaintiff's negligence was a
substantial factor in causing his own injuries.
13. PJI 1:24

Return to Courtroom

14. PJI 1:25

Consider Only Testimony and Exhibits

15. PJI 1:26

Five-Sixths Verdict

16. PJI 1:27

Exclude Sympathy

17. PJI 1:28

Conclusion

18. PJI 1:90

Expert Witnesses

You will recall that the witnesses, Dr. Roy Lubit (psychiatrist),

Dr. Robert Levy

(psychiatrist), Dr. Frank Dowling, (psychiatrist), Laurence Tancredi, M.D. (psychiatrist), Dr.
Isak Isakov (psychiatrist), Dr. Aldana-Bernier, M.D. (psychiatrist) testified concerning their
qualifications as experts in the field psychiatry and gave their opinions concerning issues in this
case. When a case involves a matter of science or art or requires special knowledge or skill not
ordinarily possessed by the average person, an expert is permitted to state his or her opinion for
the information of the court and jury. The opinions stated by each expert who testified before
you were based on particular facts, as the expert obtained knowledge of them and testified to
them before you, or as the attorney who questioned the expert asked the expert to assume. You
may reject an expert's opinion if you find the facts to be different from those which formed the
basis for the opinion. You may also reject the opinion if, after careful consideration of all the
evidence in the case, expert and other, including the cross-examination of an expert, you decide
that the opinion is not convincing. In other words, you are not required to accept an expert's

opinion to the exclusion of the facts and circumstances disclosed by other evidence. Expert
opinion is subject to the same rules concerning reliability as the testimony of any other witness.
It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find
the expert's qualifications in the field warrant and must be considered by you, but is not
controlling upon your judgment.
19. PJI 1:91

Interested Witnesses – Generally

The plaintiff and the defendants both testified before you. As parties to the action, both
are interested witnesses.
An interested witness is not necessarily less believable than a disinterested witness. The
fact that he or she is interested in the outcome of the case does not mean that he or she has not
told the truth. It is for you to decide from the demeanor of the witness on the stand and such
other tests as your experience dictates whether or not the testimony has been influenced,
intentionally or unintentionally, by his or her interest. You may, if you consider it proper under
all of the circumstances, not believe the testimony of such a witness, even though it is not
otherwise challenged or contradicted. However, you are not required to reject the testimony of
such a witness, and may accept all or such part of his or her testimony as you find reliable and
reject such part as you find unworthy of acceptance.
20. PJI 1:75 Failure to Produce Witness—In General
A party is not required to call any particular person as a witness. However, the failure to
call a certain person as a witness may be the basis for an inference against the party not calling
the witness. For example, in this case the plaintiff did not call his father, Larry Schoolcraft, to
testify regarding his participation in the events of October 31, 2009 and regarding the injuries the
plaintiff allegedly sustained. The plaintiff [has offered the following explanation for not calling

Larry Schoolcraft (summarize explanation), as a witness] or [has offered no explanation for not
calling Larry Schoolcraft].
[If explanation is offered] If you find that this explanation is reasonable, then you should not
consider the failure to call Larry Schoolcraft in evaluating the evidence. If, however, you find
[the explanation is not a reasonable one] or alternatively, [no explanation has been offered] you
may, although you are not required to, conclude that the testimony of Larry Schoolcraft would
not support the plaintiff's position on the question of whether or not Adrian Schoolcraft’s
conduct precipitated the plaintiff’s admission to Jamaica Hospital or on the question of the
injuries allegedly sustained by the plaintiff and would not contradict the evidence offered by
defendants on these questions and you may, although you are not required to, draw the strongest
inference against the plaintiff on those questions, that opposing evidence permits.
21. PJI 1:94

Use of Depositions

You are about to hear the lawyer for (plaintiff, defendant) read portions of a document
referred to as an examination before trial of (plaintiff, defendant, the witness AB). You may hear
the lawyers refer to this document as an EBT or deposition.
At some point before this trial began the (plaintiff, defendant, witness AB), under oath,
answered certain questions put to (him, her) by the lawyers for (plaintiff, defendant, all parties).
A stenographer recorded the questions and answers and transcribed them into a document which
the (plaintiff, defendant, witness AB) later signed before a notary public. The portions of the
transcript of the examination before trial that you will hear are to be considered as if (plaintiff,
defendant, witness AB) were testifying from the witness stand.

22. PJI 1:97

Special Verdict

This case will be decided on the basis of the answers that you give to certain questions that
will be submitted to you. Each of the questions asked calls for a “Yes” or “No” answer, some
numerical figure or some percentage. When you have agreed on any answer, the foreperson of
the jury will write the answer in the space provided for each answer and each juror will sign in
the appropriate place to indicate his or her agreement.
When you have answered all the questions that require answers, report to the court.
Do not assume from the questions or from the wording of the questions or from my instructions
on them what the answers should be.
23. PJI 2:10

Common Law Standard of Care-Negligence Defined

Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably
prudent person would have used under the same circumstances. Negligence may arise from
doing an act that a reasonably prudent person would not have done under the same
circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person
would have done under the same circumstances.
24. PJI 2:150

Physician Malpractice

Malpractice is professional negligence and medical malpractice is the negligence of a doctor.
Negligence is the failure to use reasonable care under the circumstances, doing something that a
reasonably prudent doctor would not do under the circumstances, or failing to do something that
a reasonably prudent doctor would do under the circumstances. It is a deviation or departure
from accepted practice.

A doctor who renders medical service to a patient is obligated to have that reasonable degree
of knowledge and skill that is expected of an average doctor, who provides that medical service
in the medical community in which the doctor practices.
The law recognizes that there are differences in the abilities of doctors, just as there are
differences in the abilities of people engaged in other activities. To practice medicine a doctor is
not required to have the extraordinary knowledge and ability that belongs to a few doctors of
exceptional ability. However every doctor is required to keep reasonably informed of new
developments in his or her field and to practice medicine in accordance with approved methods
and means of treatment in general use. A doctor must also use his or her best judgment and
whatever superior knowledge and skill he or she possesses, even if the knowledge and skill
exceeds that possessed by the average doctor in the medical community where the doctor
practices.
By undertaking to perform a medical service, a doctor does not guarantee a good result. The
fact that there was a bad result to the patient, by itself, does not make the doctor liable. The
doctor is liable only if he or she was negligent. Whether the doctor was negligent is to be decided
on the basis of the facts and conditions existing at the time of the claimed negligence.
A doctor is not liable for an error in judgment if he or she does what he or she decides is best
after careful evaluation if it is a judgment that a reasonably prudent doctor could have made
under the circumstances. In other words, a doctor is not liable for malpractice if he or she
chooses one of two or more medically acceptable courses of action.
If the doctor is negligent, that is, lacks the skill or knowledge required of him or her in
providing a medical service, or fails to use reasonable care in providing the service, or fails to

exercise his or her best judgment, and such failure is a substantial factor in causing harm to the
patient, then the doctor is responsible for the injury or harm caused.
25. PJI 2:36

Comparative Fault

If you find that any defendant was negligent and that the defendant's negligence contributed
to causing the plaintiff’s injuries, you must next consider whether the plaintiff was also negligent
and whether the plaintiff's conduct contributed to causing his injuries. The burden is on the
defendant to prove that the plaintiff was negligent and that his negligence contributed to causing
his own injuries. If you find that the plaintiff was not negligent, or if negligent, that his
negligence did not contribute to causing his own injuries, you must find that plaintiff was not at
fault and you must go on to consider damages. If, however, you find that the plaintiff was
negligent and that his negligence contributed to causing his own injuries, you must then
apportion the fault between the plaintiff and the defendant or defendants. Weighing all the facts
and circumstances, you must consider the total fault, that is, the fault of both the plaintiff and the
defendant or defendants and determine what percentage of fault is chargeable to each. In your
verdict, you will state the percentages you find. The total of those percentages must equal one
hundred percent
26. PJI 2:70

Proximate Cause – In General

An act or omission is regarded as a cause of an injury if it was a substantial factor in
bringing about the injury, that is, if it had such an effect in producing the injury that reasonable
people would regard it as a cause of the injury. There may be more than one cause of an injury,
but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is
substantial even if you assign a relatively small percentage to it.

27. PJI 2:277

Damages – General

28. PJI 2:277A

Damages – Comment by Counsel During Closing Remarks

During his closing remarks, counsel for the plaintiff suggested a specific dollar amount
he believes to be appropriate compensation for specific elements of plaintiff's damages. An
attorney is permitted to make suggestions as to the amount that should be awarded, but those
suggestions are argument only and not evidence and should not be considered by you as
evidence of plaintiff's damages. The determination of damages is solely for you, the jury, to
decide.
Dated:

New York, New York
October 28, 2015
Respectfully submitted,
_________________________
Bruce M. Brady, Esq. (BMB-4816)
Callan, Koster, Brady & Nagler, LLP
Attorneys for Defendant
DR. ALDANA-BERNIER
One Whitehall Street, 10th Fl.
New York, New York 10004
[phone]

TO:

VIA ECF
LAW OFFICE OF NATHANIEL B. SMITH
110 Wall Street
New York, New York 10005
MARTIN CLEARWATER & BELL, LLP.
220 East 42nd Street
New York, NY 10017
IVONE, DEVINE & JENSEN, LLP
2001 Marcus Avenue, Suite N100
Lake Success, NY 11042